POLICY BRIEF SERIES Double Standards in International Criminal Justice: A Long Road Ahead Towards Universal Justice By Wolfgang Kaleck FICHL Policy Brief Series No. 37 (2015) Whether international criminal justice can help overcome IMT and the proceedings met accepted legal standards of core international crimes and heal traumas depends largely the time.2 Furthermore, the Allies were by no means guilty on its legitimacy. Sadly, international criminal justice has of crimes of a scale similar to those committed by the Na- increasingly become the subject of criticisms for political zis. It would have been a distortion if “a tribunal for 24 selectivity and for being a tool of Western domination leading Nazis and then a tribunal for 24 leading Americans whose claim to universality is just an empty ideological and later a tribunal for 24 English leaders” had been estab- superstructure. This policy brief assesses double standards lished.3 in the application of international criminal law, especially concerning accountability for core international crimes 2. Impunity for Western Crimes Post-1945: committed by Western states.1 The Colonial Wars and Vietnam The struggles for independence in Indochina, Southeast 1. The Nuremberg and Tokyo Trials Asia and Africa against the colonial powers after the end The trials before the International Military Tribunal at of the Second World War were met with tactics of counter- Nuremberg (‘IMT’) and the subsequent trials held by the insurgency, including the bombing of civilian populations, Nuremberg Military Tribunal (‘NMT’) established the mass imprisonment and torture. During the Mau Mau Up- idea that anyone involved in the commission of genocide, rising in Kenya, British internment camps became sites of crimes against humanity, war crimes and crimes of aggres- systematic torture. Large areas were indiscriminately sion should be held accountable. bombarded and millions were forcibly resettled, some From one perspective, the vertical balance of defen- 20,000 to 100,000 died. No international court proceed- dants during the successor trials before the NMT was ex- ings were ever initiated in relation to these colonial crimes emplary. The defendants included members of the Nazi or in similar situations such as Algeria. No prosecution elite from military, industry, law and medicine. Despite took place in the domestic courts of the colonial powers. this, many see the successor trials partly as a failure: at the During the Vietnam War, United States (‘US’) forces beginning of the Cold War, senior functionaries managed were involved in a string of war crimes: bombing South to avoid prosecution, proceedings were shelved for politi- and North Vietnam, Laos and Cambodia, using prohibited cal reasons, and many convicts subsequently received am- weapons, the killing and rape of civilians, the widespread nesties. Similar dynamics were unfolding in Japan. Ulti- torture and killing of prisoners. Around 20,000 Viet Cong mately, vertical selectivity held sway. suspects were extra-judicially executed.4 US military In contrast, the allegation that the trials constituted ‘victor’s justice’ is mostly ill-founded. There is now al- 2 M. Cherif Bassiouni, “Das Vermächtnis von Nürnberg: eine his- most unanimous agreement that the establishment of the torische Bewertung fünfzig Jahre danach”, in Gerd Hankel and Gerhard Stuby (eds.), Strafgerichte gegen Menschheitsverbrechen. Zum Völkerstrafrecht 50 Jahre nach den Nürnberger Prozessen, 1 For more details, please consult Wolfgang Kaleck, Double Stan- Hamburger Edition, Hamburg, 1995, p. 19. dards: International Criminal Law and the West, Torkel Opsahl 3 Victor Tsilonis, “International Protection of Human Rights and Academic EPublisher, Brussels, 2015 (https://www.legal-tools. Politics: An Inescapable Reality (Interview with Professor William org/doc/971c3c/). The author thanks Simon Rau for his work on Schabas)”, in Intellectum, 2010, vol. 7, pp. 46–60. this policy brief. 4 Alfred W. McCoy, Foltern und foltern lassen, Zweitausendeins www.toaep.org courts convicted only about 20 members of the US armed selective prosecutions divided along winner-loser lines.7 It forces of war crimes. In the case of the My Lai massacre appears that the compromises reached between the UN on 16 March 1968, where about 504 civilians were mur- and the affected states regarding the establishment of hy- dered by US troops, Lieutenant William Calley was the brid tribunals has led to a degree of horizontal and vertical only person convicted. No higher ranking military mem- selectivity in prosecution. bers were tried or investigated under the doctrine of com- mand responsibility, although the massacre was the result 4. Universal Jurisdiction: Last Hope? of a systematic practice.5 It was mainly human rights organizations and associations The impunity for Western crimes in colonial wars and of victims who were instrumental in advancing national Vietnam continues to be a serious obstacle to a universal prosecutions for core international crimes since the 1990s. criminal justice system. When effective local remedies were inaccessible, these movements turned to other transnational or international 3. Yugoslavia, Rwanda and Co.: bodies.8 The Legacies of the Tribunals Spanish cases in the mid-1990s concerning crimes of The International Criminal Tribunal for the Former Yugo- the military dictatorships in Argentina and Chile are exem- slavia (‘ICTY’) has been controversial since its establish- plary.9 In 2005, a Madrid court convicted Argentine officer ment. All the former Yugoslav republics attempted to un- Adolfo Scilingo of crimes against humanity. On the basis dermine prosecutions of their nationals by accusing the of a Spanish arrest warrant, Chilean ex-dictator Augusto court of bias. International lawyers and human rights ac- Pinochet was arrested in London on 16 October 1998. The tivists joined the criticism after the NATO airstrikes on case came before the British House of Lords, which held Serbia in 1999, where war crimes may have been commit- that in cases concerning torture, former heads of state did ted. In a 2008 book, Carla Del Ponte, the former Prosecu- not enjoy immunity. The efforts of European prosecutors tor of the ICTY, agrees that some NATO strikes would and courts increased the willingness in South America to have merited legal action, but says that such an attempt deal with these crimes. Some scholars would describe this would not only have ended in failure, but would have made as ‘Pinochet-Effect’ or ‘Videla-Effect’. Chile has complet- it impossible to continue prosecuting local actors.6 ed numerous criminal cases. In Argentina, amnesty laws The International Criminal Tribunal for Rwanda were finally lifted. Since 2006, investigations have been (‘ICTR’) has only investigated and tried those involved in launched into approximately 2,600 accused of dictatorship the genocide against the Tutsis. Allegations have been crimes, with some 550 convictions secured to date. In made of war crimes committed by the Rwandan army in Guatemala, the former dictator Rios Montt was sentenced Rwanda and eastern Democratic Republic of the Congo by a domestic court in 2013. (‘DRC’) after the genocide. Del Ponte, originally chief However, the political difficulty of pursuing prosecu- prosecutor for both tribunals, lost her ICTR mandate after tions against officials of powerful states has often become she suggested that her office should step up efforts to pur- apparent. For example, following criminal complaints sue Tutsi suspects. against General Tommy Franks, the US commander over- The ICTY and ICTR can be justly criticized for not in- seeing the invasion of Iraq, Belgium largely restricted the vestigating or prosecuting certain groups and senior fig- scope of its universal jurisdiction laws. The US had exert- ures, but they should be credited with having proven that ed pressure, threatening to move NATO headquarters from international criminal justice is possible even under ad- Brussels. Surely opposition to the use of universal jurisdic- verse political circumstances. tion has also come from the Israeli and Chinese govern- ments and the African Union. The record of the various ad hoc hybrid tribunals is of- ten problematic: the chances of a tribunal being set up are Lawyers and human rights activists (including the pres- higher the more the power-balance favours the former vic- ent author) continue to push for accountability for crimes tims of state repression and the smaller the possibility that committed by US officials (for example, at Guantánamo) they themselves will face prosecution. This easily invites and representatives of other powerful states before domes- 7 Anja Jetschke, “Der Kaiser hat ja gar keine Kleider an! – Strafver- Verlag, Frankfurt a.M., 2005, pp. 79 et seq., 184. folgung durch hybride Tribunale”, in Friedenswarte, 2011, vol. 86, 5 Heiko Ahlbrecht, Geschichte der völkerrechtlichen Strafgerichts- no. 1–2, pp. 103 et seq., 125. barkeit im 20. Jahrhundert, Nomos Verlagsgesellschaft, Baden- 8 Sidney Tarrow, The New Transnational Activism, Cambridge Uni- Baden, 1999, pp. 180 et seq. versity Press, Cambridge, 2006. 6 Carla Del Ponte, Madame Prosecutor, Other Press, New York, 9 See Wolfgang Kaleck, Kampf gegen die Straflosigkeit. Argentini- 2009, p. 60. ens Militärs vor Gericht, Verlag Klaus Wagenbach, Berlin, 2010. 2 • www.toaep.org tic courts on the basis of universal jurisdiction. In our eyes, violations where there is a tangible link to the US. universal jurisdiction is not a concept